Aug. 15, 2023 – The warrantless seizure of a man on his front porch on suspicion that he’d been involved in a hit-and-run collision violated the Fourth Amendment’s warrant requirement, a three-judge panel for the Wisconsin Court of Appeals District IV has ruled in State v. Cundy, 2022 AP 540 (July 13, 2023).

Fender Bender

A man called the Mayville Police Department on July 2, 2019, to report a hit-and-run collision. About 15 minutes earlier, the man said, he’d seen a car back into a parked car, then drive away.

When a police officer arrived on the scene of the collision, the man gave the police officer the car’s license plate number.

When the police officer called in the license plate number, he learned that the car was a black Ford Fusion registered to Gregory Cundy.

The police officer drove to Cundy’s house.

Front Porch Scene

The police officer saw a black Ford Fusion sitting in Cundy’s driveway.

Cundy’s partner answered the door and, when questioned by the officer, said Cundy had been home longer than 30 minutes.

Cundy then appeared in the doorway. He held the screen door open while the police officer stood on the stoop facing him.

The police officer noticed that Cundy was groggy; he also seemed off-balance, smelled strongly of alcohol, spoke with slurred speech, and had glossy eyes.

Cundy said he’d not been driving on the street where the witness reported the hit-and-run collision at the time of the collision. He also said he’d been home for several hours.

The police officer questioned Cundy for another two minutes. Cundy then said, “Are we done here?”

“No, we’re not,” the officer said.

The officer told Cundy about the hit-and-run collision. Cundy denied driving the Ford during the last hour.

When the police officer asked Cundy how much he’d had to drink, Cundy said “Quite a few.”

Witness IDs Cundy

The officer then told Cundy to step outside of his house. When Cundy complied, the officer placed him in the back of squad car, then drove to the scene of the collision.

There, the witness identified Cundy as the man he’d seen back into the parked car.

The police officer drove Cundy back to his house. Cundy refused to perform field sobriety tests, so the officer arrested Cundy and handcuffed him.

The officer then obtained a warrant for a blood draw on Cundy. In the application for the warrant, the officer cited Cundy’s statement about how much he’d had to drink, as well as the witness’s identification of Cundy.

Convicted on All Counts  

The Dodge County District Attorney charged Cundy with: 1) operating a vehicle while intoxicated; 2) operating a vehicle with a prohibited alcohol content; and 3) obstructing an officer.

Cundy filed a motion to suppress. Cundy argued that the police officer seized him at his home without a warrant, in violation of the Fourth Amendment.

The circuit court denied Cundy’s motion. At trial, the state introduced:

• the statements Cundy made to the officer before he was handcuffed;

• the witness’s identification; and

• the results of the blood draw.

The jury convicted Cundy on all three charges. Cundy appealed.

Fourth Amendment Applies to Curtilage

Writing for a three-judge panel, Judge JoAnne Kloppenburg began her opinion by explaining that Fourth Amendment was intended to codify the respect for the “‘sanctity of the home’” historically accorded under Anglo-American law, citing Payton v. New York, 445 U.S. 573 (1980).

She also noted that courts have extended the protection of the Fourth Amendment to the curtilage (the surrounding area) of a person’s house.

Police officers are allowed to rely on the implicit license that a homeowner would grant a neighbor or visitor to enter his or her curtilage to conduct a “knock and talk” investigation, Kloppenburg pointed out.

But they may not make a warrantless and non-consensual entry into a person’s house to make a routine arrest, she explained.

“When a person does not wish to continue talking with the police at the person’s home but is required by the police to do so, that person is ‘seized’ if a reasonable person would not ‘feel free to decline the officers’ requests or otherwise terminates the encounter,” Judge Kloppenburg wrote.

Fourth Amendment Applies to Warrantless Seizures

The state argued that Payton didn’t apply to a seizure at a person’s home without an arrest.

But Payton’s holding was broader than that, Kloppenburg concluded, and its progeny had applied the Fourth Amendment to all types of seizures, not only arrests.

The state also argued that State v. Quartana, 213 Wis. 2d 440, 570 N.W.2d 618 (Ct. App. 1997), authorizes police officers to make a warrantless seizure of a person inside the curtilage of his or her home.

But Judge Kloppenburg explained that Quartana wasn’t on point because the facts in that case were distinguishable.

The defendant in Quartana was taken by police officers to the scene of an accident after they had questioned him at his residence, Kloppenburg acknowledged.

“However, Quartana argued only that, when the police transported him to the accident scene, they arrested him without probable cause in violation of Wis. Stat. section 986.24,” Judge Kloppenburg wrote.

“He did not argue that the police violated the Fourth Amendment’s warrant requirement when the police seized him at his home without a warrant … Quartana does not address the issue of whether a warrantless seizure at a person’s home violates the Fourth Amendment.”

No Exception for Reasonable Suspicion

The state also argued that an exception to the warrant requirement existed for seizures in a house or curtilage that are based on reasonable suspicion.

But Kloppenburg concluded that the reasoning of a non-precedential Wisconsin Court of Appeals opinion that there is no such exception was persuasive.

Judge Kloppenburg agreed with Cundy that because his seizure was unlawful, all the evidence obtained by the state because of the seizure must be suppressed.

The court of appeals reversed and remanded the case for further proceedings.